An arrest based upon a mistake of law is unlawful and contrary to Section 9 of the Charter

Firstly, it took me a while to wrap my brain around this one to make sure I had the decision clear before posting. In the same interaction, police conducted both an unlawful search, but later a lawful search of the same individual. Let’s start with the facts in brevity (R. v. Tim 2022 SCC 12):

A member of the public called 9-1-1 to report a single-vehicle collision on Memorial Drive in Calgary. The driver’s car had veered off the road, hit a roadside sign, and continued for about a kilometer before it became disabled. Fire, medical, and police services rushed to the scene. The driver (and lone occupant) was standing at the side of the road talking to a firefighter when a police officer arrived. The officer, suspecting that the driver had fled the scene of the collision, approached him and asked if he had been involved in an accident. The driver acknowledged that he had hit the sign, but he claimed that he could not stop. The officer asked the driver for his driver’s licence, vehicle registration, and proof of insurance. The driver said he would get the documents from his car. The officer followed him as he did so. When the driver opened the driver-side door, the officer saw a small ziplock bag containing a single yellow pill near the window controls in the door area. The driver’s eyes motioned to the pill, and he quickly swiped it to the ground outside of the car, as if he were trying to hide it. The officer recognized the pill as gabapentin, which he had seen trafficked on the street with illegal drugs such as fentanyl and methamphetamine. Because the officer believed that gabapentin was a controlled drug under the CDSA, he immediately arrested the driver for possession of a controlled substance. After the driver was arrested, the police conducted four searches:

  • In the first search, the officer conducted a pat-down search of the driver incident to arrest. This search revealed live ammunition for a .22 calibre rifle and a .45 calibre handgun, five fentanyl pills, two pills later identified as hydromorphone (an opioid and controlled substance under the CDSA), two pills later identified as alprazolam (a tranquillizer and controlled substance under the CDSA), another gabapentin pill, three cell phones, and $480 in cash.
  • In the second search, another police officer, who arrived moments before the arresting officer placed the driver under arrest, searched the driver’s car incident to arrest. He found a folded serrated knife, a canister of bear spray, four fentanyl pills, and two pills later identified as alprazolam.
  • In the third search, the arresting officer searched the driver again because he became concerned that the first search might have missed some items. His suspicions were aroused because the driver was walking strangely while being taken to the patrol car: he was limping and shaking his leg, as if he had something hidden in his pants or falling down his pant leg. The officer then saw .22 calibre ammunition fall from the leg of the driver’s pants. While searching his person, the officer touched the outside of the driver’s pants in his groin area and felt a metal object. A double-barrelled handgun immediately fell from his pants. The gun was loaded with two live rounds, one in each barrel.
  • In the fourth search, the driver was strip searched at the police station. He was asked to strip down to his underwear and an officer searched around his waistband to see if he had hidden anything else. No more contraband or weapons , etc. were found.

Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary. By way of reminder for this post, Sections 495(1)(a) and (b) of the Criminal Code provide that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” or “a person whom he finds committing a criminal offence”. Unfortunately, the officer arrested the driver for possession of gabapentin specifically. The officer knew the facts — he correctly identified the pill as gabapentin at the time he saw it — but mistakenly concluded that possession of gabapentin was an offence, when, in law, it was not, because that drug is not a controlled substance under the CDSA. Justice Mahmud Jamal, writing for the majority, said the court is not suggesting that the police must see and correctly identify a specific drug from the hundreds of controlled substances under the CDSA before they may lawfully arrest a suspected drug offender. Police routinely arrest suspected drug offenders for potential infractions of the CDSA, even when they do not see or identify specific drugs. Courts routinely uphold the legality of such arrests, if they conclude that there were reasonable grounds to arrest, but in this specific case, “If the offence that the police officer believes has been committed simply does not exist, the officer does not have the power to … arrest the person…”.

Turning now to the four searches, this is where things were muddied, but I believe I have it figured out (here’s hoping):

  • The first two searches — the initial pat-down search of the driver and the search of the driver’s car on discovering the gabapentin — were purportedly conducted incident to arrest, which must meet three conditions: (1) the person searched is lawfully arrested; (2) the search is “truly incidental” to the arrest, i.e., for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably. Here, the initial pat-down search of the driver and the search of his car incident to arrest falter on the first condition: he was not lawfully arrested. Thus, the first two searches necessarily breached s. 8 of the Charter.
  • The third search was purportedly undertaken incident to an investigative detention. How you ask? Well, the police’s interaction with the driver was at first a traffic collision investigation. The arresting officer testified that he came to where the driver’s damaged car had stopped and approached him because he suspected that he had fled the scene of a collision with a roadside sign. In doing so, the officer was properly exercising investigatory powers under Ontario provincial traffic law (I won’t expand on this authority in this post) and the Criminal Code (under s. 320.16(1) of the Criminal Code, it is an offence, in certain circumstances, to fail to stop after a traffic accident). R. v. Mann 2004 SCC 52 recognized that the police have a common law power to search incident to investigative detention under certain circumstances. Speaking for the majority in Mann, Iacobucci J. stated that “police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary” (para. 45). He added that a police officer “may engage in a protective pat-down search of the detained individual” when the officer “has reasonable grounds to believe that his or her safety or that of others is at risk” (para. 45). In addition, both the investigative detention and the pat-down search “must be conducted in a reasonable manner” (para. 45; see also R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20 and 29-31). Speaking for the majority in Tim, Justice Jamal read the officer’s evidence in context as expressing concern for whether he might have “missed some items” that would pose a safety risk to himself or to others. The officer had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. The obvious “something” was a gun, said the court. When there are concealed bullets, there may be a concealed gun. The further pat-down search of the driver, in which the officer dislodged a loaded handgun by merely touching the outside of the his pants, was also conducted reasonably. This search did not breach s. 8 of the Charter.
  • The fourth search, the strip search (although nothing further was found), was also ruled to be lawful: reasonable grounds exist to justify a strip search “where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest” (R. v. Ali 2022 SCC 1, at para. 2; see also R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 94 and 111). The strip search must also be conducted reasonably, in a manner that “interferes with the privacy and dignity of the person being searched as little as possible” (Golden, at para. 104). Here, the driver was lawfully arrested for the weapons offences after the ammunition and the handgun fell from his pants. The officer testified that, following the third search, he “seized the items that fell onto the ground out of [the driver’s] pant leg … and then [he] placed the [driver] in [his] vehicle, where he was chartered and cautioned”. The strip search at the police station was incident to this weapons arrest, because it was for the purpose of discovering concealed weapons or evidence related to the offence for which the driver was lawfully arrested, it was minimally intrusive as it was conducted reasonably, in a manner consistent with the SCC’s guidelines for strip searches (see Golden, at paras. 101-2). It was performed at the police station, it was limited to the driver’s underwear waistband, and the driver wore his underwear throughout the search. It therefore did not infringe s. 8 of the Charter.

So, to sum up, the majority of the SCC found that the initial pat-down search of the driver and the search of his car infringed s. 8 of the Charter (because he was arrested, and his car search, incident to an unlawful arrest for a drug not controlled under the CDSA), but the further pat-down search and the strip search did not as it was incident to an investigative detention (e.g., 320.16(1) CC) for a traffic collision investigation, the officer had concerns for his safety given that he had just found bullets on the driver during a pat-down search, and then he saw more bullets falling from his pants. The driver was “limping and shaking his leg”, as if he had “something concealed in his pants”. This lead to an arrest for weapons offences and a subsequent strip search.

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Filed under Arbitrary Arrest or Detention, Recent Case Law, Safety Search, Search and Seizure

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